The
accused Ram Sanehi, Baladin, Ramadin, Shiv Dayal and Dharnidhar were tried for
the murder of two persons differently, namely, Bahadur Singh and his father
Pyare Lal in Sessions Trial No. 44 of 1989. The ld. Sessions Judge, Jhansi,
vide its judgment dated 7th August, 1992 after finding all the accused guilty
of different offences, including Section 302 of the Indian Penal Code
(hereinafter referred to as "IPC") punished them. The order of
punishment reads as under:

"Accused
Ram Sanehi, Ramadin, Baladin and Shiv Dayal are hereby sentenced to suffer life
imprisonment under section 302/34, I.P.C. for committing murder of Bahadur
Singh. They and accused Dharnidhar are also sentenced to life imprisonment
under section 302/149, I.P.C. for committing murder of Pyare Lal.

Accused
Ram Sanehi, Ramadin, Baladin and Shiv Dayal are mentioned to the year's R.I.
u/s 148 I.P.C. and accused Dharnidhar is sentenced to six month's R.I. u/s 147,
I.P.C. All these sentences shall run concurrently.

2 All the
accused preferred appeals against the judgment of conviction and order of
sentence before the High Court which also came to be dismissed vide judgment
dated March 22, 2004, wherein the High Court declined to interfere either with
the findings of conviction or order of sentence which consequently stood
confirmed. Accused Dharnidhar filed Criminal Appeal No. 239 of 2005 against the
judgment of the High Court, accused Ram Sanehi along with other accused filed
an appeal being Criminal Appeal No. 429 of 2005 and Shiv Dayal preferred a
separate appeal being Criminal Appeal No. 430 of 2005 against the judgment of the
High Court. Thus, by this judgment we shall dispose of all the above three
appeals as they are directed against the common judgment of the High Court and
are based upon common evidence. The challenge to the judgment of the High Court
and the Ld. Sessions Judge, inter alia, is primarily on the following grounds:

i) The
alleged eye witnesses PW1 and PW3 are family members of the deceased and as
such are interested witnesses. The conviction of the appellants is based, 3
primarily, on the statements of these witnesses, which as such, is liable to be
set aside.

ii) The
prosecution has failed to prove any motive for the alleged commission of the
crime. The appellants had no motive to commit the said crime and, therefore,
the story put forward by the prosecution stands falsified.

iii) The
evidence, including the evidence of Dr. P.N. Dwivedi (PW6) creates serious
doubts in the case advanced by the prosecution. Particularly, when the Court
had disbelieved Devi Singh, PW2, who is alleged to have been a witness to both
the incidents, the Court ought to have come to the conclusion that the
prosecution has failed to prove its case beyond any reasonable doubt. The
conduct and role of the accused as attributed by the prosecution is not only
improbable, but is impossible to be believed. It is contended that why would
the accused leave the brother of deceased Bahadur Singh, who was standing there
at the time of his murder and go all the way to kill his father Pyare 4 Lal.
Seeing this, in the light of the documentary and ocular evidence, benefit of
doubt ought to have been given to the appellants.

iv) The
learned trial Court as well the High Court has fallen in error of law in
convicting accused Ram Sanehi, Baladin, Ramadin and Shiv Dayal with the aid of
Section 34 and accused Dharnidhar with the aid of Section 149 of the IPC
respectively. In the facts and circumstances of the case, the basic ingredients
for application of these provisions had not been satisfied by the prosecution.
Thus, the conviction is vitiated in law.

On the
contrary, learned counsel appearing for the respondent has vehemently argued
that there was sufficient documentary and expert evidence on record. The
version of the eye witnesses cannot be doubted, their presence on the site was
natural and they had no reason to falsely implicate all or any of the accused
in the murder of their brother and father. It is contended that the version of
eye witnesses is fully supported by 5 expert evidence and the statement of the
Investigating Officer.

Once the
prosecution is able to fully corroborate the incident as recorded in the FIR,
the judgment under appeal cannot be interfered with.

In order
to examine the rival contentions raised in the present appeals, it will be
necessary for us to refer to the facts appearing from the case of the
prosecution.

On
19.11.1988 at about 6.15 P.M. one Deo Pal, who was examined as PW1, had lodged
the FIR in the Police Station at Kakkarwai stating that on the evening of
19.11.1988 at about 4.30 P.M., he along with his brother Devi Singh and one
Kallu were sitting in the cattle shed of Jawahar, carpenter. He had gone to
sharpen his sickle. After about 10 minutes, his brother Bahadur Singh (since
deceased) came there to sharpen his gandasa. In the meanwhile, appellants Ram
Sanehi, Baladin @ Balla, Shiv Dayal and Ramadin came there. Accused Shiv Dayal
has a sphere and Ram Sanehi, Baladin and Ramadin had guns.

Appellant
Shiv Dayal inflicted sphere blow on the left shoulder of Bahadur Singh and
thereafter, the three accused carrying 6 guns fired from their respective guns.
After receiving the bullet injuries, Bahadur Singh fell down and died. The
witnesses, present there, were not able to save him because of the fear caused
by the accused persons. After murdering Bahadur Singh, Ram Sanehi said that
they had killed him and his father Pyare Lal should also be killed. Saying
these words, the appellants proceeded towards the fields where Pyare Lal was
watering his bajara crops. Deopal, Devi Singh and his wife Moola Bai were
present in the field. At that time, appellant Dharnidhar also came there and
joined the other appellants.

Dharnidhar
snatched the kulhari of Pyare Lal. Thereafter, the said three accused, who were
carrying guns, fired on Pyare Lal.

Sustaining
the fire arm injuries, Pyare Lal fell down. Not satisfied with the same,
Dharnidhar then cut his neck with kulhari. Deopal then raised an alarm and made
a hue and cry.

Several
village persons rushed towards the spot but before they could reach, the
appellants escaped and went towards the jungle. This incident took place at
about 4.45p.m. PW1 reported the matter to the police station, as already
noticed, and on the 7 basis of the report, H.C. Shiv Charan prepared the report
(Ext.Ka 27) made endorsement on the same at the G.D. report (Ext. Ka 28) and
registered the case against all the appellants under Sections 147, 149, 302 and
149 of the I.P.C.

The case
was initially investigated by Ram Autar Mathur (PW 10) who went to the spot
along with two constables but the investigation could not be completed because
of paucity of light.

Next
morning the I.O. conducted inquest of the body of deceased Bahadur Singh and
recovered one empty cartridge from the spot, collected blood stained and simple
earth sample from the spot and prepared recovery memos. He also completed the
investigation at the place of the murder of Pyare Lal. The dead bodies of
Bahadur Singh and Pyare Lal were subjected to autopsy on 21.11.1988 by PW6, and
he found the following injuries on the bodies of the deceased.

(7) Gunshot
wound to exit five in number, smallest being = cm 2 x = cm and largest being
0.75 cm x = in an area of 12 cm x 6 cm on right portion of chest, 10 cm below
from axilla right side and 18 cm above from right anterior supra iliac spines,
Injury corresponded to injury no. 6.

Cause of
death was shock and hemorrhage resulting from ante mortem injuries.

The
doctor recovered one cork, one big metallic shot and two small metallic shot
from stomach, 2 corks and 5 small metallic shorts were recovered from right and
left lung."

The
prosecution had amongst others examined Deopal, PW1, Devi Singh, PW 2 and Manohar,
PW 3 who had claimed to be the eye witnesses to either or both of the murders.
During the course of investigation, recoveries were made upon the statements
made by the accused. Thakur Das, PW 7 was an independent witness for the
recovery of sphere, as pointed out by accused Shiv Dayal. The investigation of
the case was conducted by different officers. H.C. Shiv Charan Singh, PW 11 was
posted as Head Muherer and he had prepared (Ext. Ka 27) as well as registered
the case in GD as (Ext.Ka 28). PW1 and PW2 had fully supported the case of the
prosecution. The blood marks were found at both the places of occurrence. After
completing the investigation, challan under Section 173 of the Criminal
Procedure Code (hereinafter referred to as `Cr.P.C.') was filed 12 before the
Court of competent jurisdiction. After the case was committed to the Court of
Sessions, all the accused were tried in accordance with the law. Statement
under Section 313 Cr.P.C.

was
recorded and finally, as noticed above, they were convicted and sentenced by
the trial Court and the same was sustained by the High Court, giving rise to
the present appeals.

The
arguments raised on behalf of the appellants, in fact, can be discussed
together inasmuch as they are based upon somewhat common submissions. There is
no doubt that PW1 and PW2, both are related to the deceased. The contention
raised before us is that both of them are interested witnesses and have not
stated true facts before the Court and thus, their statements should be
entirely disbelieved. We are unable to find any merit in this contention. It
has come on record that Pyare Lal was pursuing a case in which members of the
family of the accused persons were involved in a murder. There was apparently
some anger and rift between the families. According to the story of the
prosecution, they had come prepared to kill Bahadur Singh as well as Pyare Lal
as they were carrying guns, 13 sphere etc. The deceased were attacked by the
accused in the presence of their brothers, who could not intervene and save
them because of the fear of the gun fire and the manner in which the incident
occurred. It was but natural for the prosecution to produce PW1 and PW2 as the
main eye witnesses as they had actually seen the occurrence and they have been
believed by the trial Court, as well as by the High Court. Even before us, no
serious attempt has been made and in fact, nothing appears from the record to
show that these two witnesses were not present on the site. There is no hard
and fast rule that family members can never be true witnesses to the occurrence
and that they will always depose falsely before the Court. It will always
depend upon the facts and circumstances of a given case. In the case of
Jayabalan v. U.T. of Pondicherry [(2010)1 SCC 199], this Court had occasion to
consider whether the evidence of interested witnesses can be relied upon. The
Court took the view that a pedantic approach cannot be applied while dealing
with the evidence of an interested witness. Such evidence cannot be ignored or
thrown out solely because it comes from a person 14 closely related to the
victim. The Court held as under:

"
23. We are of the considered view that in cases where the court is called upon
to deal with the evidence of the interested witnesses, the approach of the court,
while appreciating the evidence of such witnesses must not be pedantic. The
court must be cautious in appreciating and accepting the evidence given by the
interested witnesses but the court must not be suspicious of such evidence. The
primary endeavour of the court must be to look for consistency. The evidence of
a witness cannot be ignored or thrown out solely because it comes from the
mouth of a person who is closely related to the victim.

24. From
a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and
categorical in reference to the frequent quarrels between the deceased and the
appellant. They have clearly and consistently supported the prosecution version
with regard to the beating and the ill-treatment meted out to the deceased by
the appellant on several occasions which compelled the deceased to leave the
appellant's house and take shelter in her parental house with an intention to
live there permanently. PWs 1 to 4 have unequivocally stated that the deceased
feared threat to her life from the appellant.

The
aforesaid version narrated by the prosecution witnesses, viz. PWs 1 to 4 also
finds corroboration from the facts stated in the complaint."

15
Similar view was taken by this Court in Ram Bharosey v. State of U.P. [AIR 2010
SC 917], where the Court stated the dictum of law that a close relative of the
deceased does not, per se, become an interested witness. An interested witness
is one who is interested in securing the conviction of a person out of
vengeance or enmity or due to disputes and deposes before the Court only with
that intention and not to further the cause of justice. The law relating to
appreciation of evidence of an interested witness is well settled, according to
which, the version of an interested witness cannot be thrown over- board, but
has to be examined carefully before accepting the same. In the light of the
above judgments, it is clear that the statements of the alleged interested
witnesses can be safely relied upon by the Court in support of the prosecution's
story. But this needs to be done with care and to ensure that the
administration of criminal justice is not undermined by the persons, who are
closely related to the deceased. When their statements find corroboration by
other witnesses, expert evidence and the circumstances of the 16 case clearly
depict completion of the chain of evidence pointing out to the guilt of the
accused, then we see no reason why the statement of so called `interested
witnesses' cannot be relied upon by the Court. In the present case, the
circumstances are such that we cannot find any error in the concurrent findings
of fact recorded by the Trial Court, as well as by the High Court that these
two witnesses were present at the respective places and had actually seen the occurrence.
Their statements about gun fires, as well as the injuries caused by the kulhari
and sphere respectively are duly supported by the medical evidence, as well as
by the statements of the investigating officers. Thus, we find that the
contention raised on behalf of the appellants is liable to be rejected.

The
second contention raised on behalf of the appellants is that the prosecution
has failed to prove any motive for the commission of the crime, and in absence
of clear and emphatic motive, the order of conviction is liable to be set aside
and the accused are entitled to acquittal. This submission, firstly, is based
on misreading of the record and secondly, it is devoid of 17 any merit. It has
come on record that one Umrao, father of appellant Ram Sanehi was murdered.
Bahadur Singh (deceased) was prosecuted for the said murder. Pyare Lal
(deceased), father of Bahadur Singh, was doing pairvi on behalf of and along
with Bahadur Singh, in which he was finally acquitted. It is also the case of
the prosecution that there was enmity between these persons and all other
appellants and the family of Ram Sanehi, appellant. The evidence of PW1, PW2
and PW3 indicates that the relations between these two families were quite
strained, and the way the crime has been committed clearly indicates that the
family of Ram Sanehi would have been unhappy with the acquittal of Bahadur
Singh in that murder case. This itself indicates some kind of motive for
committing the crime in question. Be that as it may, it is not always necessary
for the prosecution to establish a definite motive for the commission of the
crime. It will always be relatable to the facts and circumstances of a given
case. It will not be correct to say as an absolute proposition of law, that the
existence of a strong or definite motive is a sine qua non to holding an
accused 18 guilty of a criminal offence. It is not correct to say that absence
of motive essentially results in the acquittal of an accused if he is otherwise
found to be guilty. In the case of Babu Lodhi vs. State of U.P. [(1987) 2 SCC
352], this Court took the view that in so far as the adequacy of motive is
concerned, it is not a matter which can be accurately weighed on the scales of
a balance. In Prem Kumar vs. State of Bihar [(1995) 3 SCC 228] the Court
discussed the concept of motive as applicable to Indian criminal jurisprudence
and held as under:

"5.
.....................................The Courts below have concurrently held
that the motive suggested by the prosecution against the accused persons is
established. When there is sufficient direct evidence regarding the commission
of the offence, the question of motive will not loom large in the mind of the
court. It is true that this Court has held in State of U.P. v. Moti Ram [(1990)
4 SCC 389] that in a case where the prosecution party and the accused party
were in animosity on account of series of incidents over a considerable length
of time, the motive is a double-edged weapon and the key question for
consideration is whether the prosecution had convincingly and satisfactorily
established the guilt of all or any of the accused beyond reasonable doubt by
letting in reliable and cogent evidence.

19 Very
often, a motive is alleged to indicate the high degree of probability that the
offence was committed by the person who was prompted by the motive. In our
opinion, in a case when motive alleged against the accused is fully
established, it provides a foundational material to connect the chain of
circumstances. We hold that if motive is proved or established, it affords a
key or pointer, to scan the evidence in the case, in that perspective and as a
satisfactory circumstance of corroboration. It is a very relevant, and
important aspect - (a) to highlight the intention of the accused and (b) the approach
to be made in appreciating the totality of the circumstances including the
evidence disclosed in the case. The relevance of motive and the importance or
value to be given to it are tersely stated by Shamsul Huda in delivering the
Tagore Law Lectures (1902) - The Principles of the Law of Crimes in British
India, at page 176, as follows:

`But
proof of the existence of a motive is not necessary for a conviction for any
offence. But where the motive is proved it is evidence of the evil intent and
is also relevant to show that the person who had the motive to commit a crime
actually committed, it, although such evidence alone would not ordinarily be
sufficient. Under Section 8 of the Evidence Act any fact is relevant which
shows or constitutes a motive or preparation for any fact in issue or relevant
fact'."

20
However, in cases which are entirely or mainly based upon and rest on
circumstantial evidence, motive can have greater relevancy or significance
(Babu Lodhi and Prem Kumar's case (supra). But it is equally true that when
positive evidence against the accused is clear in relation to the offence,
motive is not of much importance. Mere absence of motive, even if assumed, will
not per se entitle the accused to acquittal, if otherwise, the commission of
the crime is proved by cogent and reliable evidence (State of Punjab vs. Kuljit
Singh [2003 (2) RCR (Criminal) 629]. Significance of relevancy of motive would
primarily depend upon the facts and circumstances of a given case. In the case
in hand, there are eye witnesses whose version is supported by expert and other
evidence. Their statements find corroboration and infact, they completely fit
in with the case put forward by the prosecution and there is hardly any
occasion for the Court to doubt the version of the prosecution. Firstly, we
find that there exists some motive for Ram Sanehi and other appellants, who are
his family members, to commit the crime, but in case of direct and clear
evidence, there is no need for the 21 Court to attach undue emphasis or
importance to the motive behind the crime. The principles afore stated would
clearly apply to the facts of the present case and we cannot find fault in the
concurrent judgments, which is the subject matter of the present appeals.

It is
further argued that there are some variations or doubts in the statements of
the doctor and the eye witnesses.

Emphasis
was placed on the fact that the trial Court, in para 6 of its judgment,
disbelieved Devi Singh, PW 2, and thus the obvious conclusion ought to have
been that the prosecution has failed to bring home the guilt of the accused.
This contention, again, does not impress us. Witnesses have been examined in
the Court after a considerable lapse of time. It is neither unnatural nor
unexpected that there could be some minor variations in the statements of the
prosecution witnesses. Both PW1 and PW2 were the relations of both the deceased
and were eye witnesses to the occurrence. Certain part of the statement of Devi
Singh, PW2, have been doubted by the trial Court, in view of the fact that at
one place he stated that he had gone to village 22 Durkhuru on the date of the
occurrence and thereafter, in reply to the Court's question he was consistent
with his statement made under Section 161 of the Cr.P.C. as well as the
examination-in-chief, that he had gone to village Durkhuru on the day
subsequent to the date of the occurrence. The statement of PW2 does not really,
in any way, vitiate the case of the prosecution which is aptly supported by the
statements of PW1, PW2, PW6 and the statements of other witnesses. PW 6 has
clearly stated that the dead bodies of the deceased contained the injuries of
gun fire as well as that of kulhari and sphere. It will be useful to refer to
the statement of this witness, particularly, with reference to gun shots, bhala
as well as kulhari.

"The
injury No. 10 of Bahadur was possible by the Bhala which was exhibit - 1. The
witness has been shown the sphere/Bhala the injury No. 1 to 6 can be caused by
fire arms injuries No. 7 & 8 can be caused to fallen when fallen. But at
one time both the injuries caused which is not possible. The injuries No. 9 may
be caused by fall. These injuries caused and it may be possible that these
injuries caused on dated 19.11.88 at 4.30 o' clock in the evening. These
injuries were normal but these injuries are sufficient for death.

23 I had
seized from the body of the deceased one cork and 21 metal pallets from the
left side's lungs. One Cork and 12 pallets were seized from the right lung and
from forensic cavity of muscles. 2 Corks and 18 pallets were recovered from the
lever and stomach cavity.

From the
body of the deceased one Baniyan and one Chaddi, One Lungi was recovered and
after preparing its Bundles were given to the constable.

The
injury No. 1 and 2 by Kulahdi Ex2 was possible to have occurred. Axe was shown
to the witness injury No.3 to 8 is possible to be caused by fire arms. Injury
No. 9 to 10 could be caused by falling on the ground.

These
injuries were sufficient to cause death. These injuries could have been
possibly caused on 19.11.88 at about 4.30 in the evening.

One cork
one big pellet and two small pellets' were recovered from his level and two
corks and five small pallets were recovered from his left and right lever.

These
articles were handed over to the constable after sealing it. That from the body
of the deceased one Kurta, One Dhoti, One Baniyan and One ring of Coper were
recovered which were sealed and handed over to the Constable who had come
with."

This
witness was cross examined at some length, but nothing favourable to the
accused could come on record. The statement 24 of this witness clearly shows
that there were gunshot injuries on the bodies of both the deceased as well as
sphere and kulhari injuries on their shoulder and neck respectively. Thus,
medical evidence fully corroborates the statements of PW1 and PW3.

Even if
the statement of Devi Singh, PW2, is ignored, there is no reason whatsoever
before the Court to doubt the version given by PW1 and PW3. Their presence at
the site was natural.

In
addition to this, it must be noticed that upon the statement of Shiv Dayal, the
sphere (Ext. Ka 1) was recovered from the bushes of the village Kharwanch in
presence of Thakur Das, PW 7, and Kanhaiya Lal. Thakur Das, PW 7, appeared as a
witness and corroborated the evidence of Ranjit Singh, PW 9.

The
sphere was sent for chemical and serological examination.

The
report of the Chemical Examiner and Serologist (Ext. Ka 32) was received and it
showed that the sphere contained human blood. The involvement of accused Shiv
Dayal along with other accused persons, the recovery of the weapons and the
fact that human blood was traced on the recovered weapon completes the chain of
events relating to the commission of the 25 crime. It will not be in conformity
with the settled canons of criminal jurisprudence to disregard the evidence
merely because Devi Singh, PW 2, had made a variable statement which could be
the result of confusion or lack of understanding the question in its proper
perspective, more so, when he immediately in answer to the Court's question,
stated, that he had gone to village Durkhuru on the day subsequent to the
commission of the crime and not on the same day. It will be unfair, in any
case, to disbelieve the presence of PW1 and PW3 at the respective places of
occurrence and their statements, merely because PW2's statement creates certain
doubts as regards his presence. As already noticed, the counsel for the
appellant had, with some vehemence, argued about the unnatural conduct
attributed by the prosecution to the accused. It was argued that brother of
deceased Bahadur Singh was right in front of the accused at the place of first
occurrence, and they would have killed him rather than going to the other site
to kill Pyare Lal, the father of deceased Bahadur Singh. This argument hardly
cuts ice, much less, leads to any favourable conclusion for the accused. There
26 is specific evidence on record which has been noticed by the High Court as
well as by the Trial Court that Bahadur Singh was prosecuted for the murder of
Umrao, Ram Sanehi's father and was acquitted. The case was contested by Pyare
Lal, father of Bahadur Singh. We have already indicated that there is some
motive apparent for commission of the crime, which further indicates in the
light of this evidence that they preferred to kill Bahadur Singh and his father
Pyare Lal. This cannot be said to be unnatural or of such a nature that it is
not normally expected of a person intending to commit a crime.

Another
reason is the statement of PW3. PW3, Manohar is the son of the deceased Pyare
Lal and has supported the case of the prosecution. If this witness was lying,
then he would have certainly deposed that he also was an eye-witness to the
first occurrence i.e. murder of Bahadur Singh. However, in his
examination-in-chief, he has specifically deposed that he was an eye-witness
only to the murder of Pyare Lal, his father and never referred to the murder of
his brother, Bahadur Singh. The truthfulness and bona fide of this witness can
hardly be doubted.

27 He has
further deposed that Dharnidhar had not come with other accused but had
suddenly entered there and snatched the kulhadi from his father. With that
kulhadi, he has caused injury on the neck of the deceased Pyare Lal. If this
witness was to falsely implicate all the accused, nothing preventing him from
stating that Dharnidhar had come with all other accused and they together
attacked the deceased and also that he was a witness to the murder of Bahadur
Singh and that even Dharnidhar was involved in the murder of his brother. His
statement is fully supported by PW1, as well as the Investigating Officer. If
they were falsely implicated, in all probability, PW1, PW2 and the
Investigating Officer could have named Dharnidhar in relation to the first
occurrence, i.e. murder of Bahadur Singh. The attempt was also made to create a
dent in the case of the prosecution on the ground that Jawahar, who was stated
to be present, was not examined by the prosecution and was the only independent
witness. Thus, adverse inference should be drawn against the prosecution for
this purpose. This contention has rightly been rejected by the learned trial
Court 28 and for correct reasons. The prosecution has filed an affidavit that
the said witness has been won over by the accused and thus he was not examined.
The Courts have already relied upon the judgment of this Court in Mst. Balbir
Kaur vs. State of Punjab [1997 Crl.L.J. 273] and observed as under:

"It
is undoubtedly the duty of the prosecution to lay before the Court all material
evidence available to it which is necessary for unfolding its case; but it
would be unsound to lay down as a general rule that every witness must be
examined even though his evidence may not be very material or even it is known
that he has been won over or terrorized. In such a case, it is always open to
the defence to examine such witnesses and the Court can also call such witness
in the box in the interest of justice under Section 540 Cr.P.C."

Therefore,
we have no hesitation in rejecting this contention raised on behalf of the
appellants.

Still
another aspect of this case is that when the accused were being examined under
Section 313 Cr.P.C., they, barely, denied the incident and stated that there
were land disputes.

No
evidence in that behalf had been adduced by the accused persons. Even if this
statement is assumed to be correct, now 29 the accused cannot turn their back
and deny the existence of dispute between the parties. This would further be
one of the links in the chain completing the crime of murder. Besides giving a
general denial even to the basic facts, the accused in the last two questions
put to them by the Court, in their statements under Section 313 of the Cr.P.C.,
stated that Deopal etc. are from the same family and they have falsely given
evidence against them. They also stated that Deopal and the family of the
deceased wanted to grab their land and, therefore, they have falsely implicated
them in the present case. It is a settled principle of law that the statement
made by the accused under Section 313 of the Cr.P.C. can be used by the Court
to the extent that it is in line with the case of the prosecution. The same
cannot be the sole basis for convicting an accused. In the present case, the
statement of accused before the Court, to some extent, falls in line with the
case of the prosecution and to that extent, the case of the prosecution can be
substantiated and treated as correct by the Court. The legislative intent
behind this section appears to have twin objects. Firstly, to provide an 30
opportunity to the accused to explain the circumstances appearing against him.
Secondly, for the Court to have an opportunity to examine the accused and to
elicit an explanation from him, which may be free from the fear of being
trapped for an embarrassing admission or statement. The proper methodology to
be adopted by the Court while recording the statement of the accused under
Section 313 of the Cr.P.C. is to invite the attention of the accused to the
circumstances and substantial evidence in relation to the offence, for which he
has been charged and invite his explanation. In other words, it provides an
opportunity to an accused to state before the Court as to what is the truth and
what is his defence, in accordance with law. It was for the accused to avail of
that opportunity and if he fails to do so then it is for the Court to examine
the case of the prosecution on its evidence with reference to the statement
made by the accused under Section 313 of the Cr.P.C. In Hate Singh Bhagat Singh
vs. State of Madhya Bharat [AIR1953 SC 468], while dealing with Section 342 of
the old Cr.P.C.

equivalent
to Section 313 of the present Cr.P.C. observed that 31 answer of the accused
given can be used in other enquiries or trials for other offences. In the case
of Narayan Singh vs. State of Punjab [(1963) 3 SCR 678 a Three Judge Bench of
this Court held as under:

"Under
Section 342 of the Cr.P.C. of Criminal Procedure by the first Sub-section,
insofar as it is material, the Court may at any stage of the enquiry or trial
and after the witnesses for the prosecution have been examined and before the
accused is called upon for his defence shall put questions to the accused
person for the purpose of enabling him to explain any circumstance appearing in
the evidence against him.

Examination
under Section 342 is primarily to be directed to those matters on which evidence
has been led for the prosecution to ascertain from the accused his version or
explanation if any, of the incident which forms the subject matter of the
charge and his defence. By Sub-section (3), the answers given by the accused
may "be taken into consideration" at the enquiry or the trial. If the
accused person in his examination under Section 342 confesses to the commission
of the offence charged against him the Court may, relying upon that confession,
proceed to convict him, but if he does not confess and in explaining
circumstance appearing in the evidence against him sets up his own version and
seeks to explain his conduct pleading that 32 he has committed no offence, the
statement of the accused can only be taken into consideration in its entirety.

Following
the law laid down in Narayan Singh's case (supra) the Apex Court in State of
Maharashtra v. Sukhdeo Singh [1992 CriLJ 3454] further dealt with the question
whether a statement recorded under Section 313 of the Cr.P.C. can constitute
the sole basis for conviction and recorded a finding that the answers given by
the accused in response to his examination under Section 313 of the Cr.P.C. of
1973 can be taken into consideration in such an inquiry or trial though such a
statement strictly is not evidence and observed in paragraph 52 thus:

Even on
the first principle we see no reason why the Court could not act on the
admission or confession made by the accused in the course of the trial or in
his statement recorded under Section 313 of the Cr.P.C.....

It is
thus well established in law that admission or confession of accused in the
statement under Section 313 of the Cr.P.C.

recorded
in the course of trial can be acted upon and the Court can rely on these
confessions to proceed to convict him."

33 The
possibility of the accused being falsely implicated in this case, in our
opinion, stands ruled out. The statement of the afore- referred witnesses, read
in conjunction with the documents filed on record, expert evidence, recovery of
weapons and blood stained earth, clearly establishes beyond reasonable doubt,
the guilt of the accused.

Having
discussed the merits of the case, we would now proceed to deal with the last
contention raised on behalf of the appellant-accused that the Court could not
have convicted all the accused with the aid of Section 34 and/or 149 IPC. There
is no doubt that Shiv Dayal has been attributed a common role for the second
incident and has been convicted on the basis of Section 34 and/or 149 IPC. As
per the case of the prosecution there were 5 persons involved in the commission
of the crime.

Shiv
Dayal was stated to have given sphere blow to the deceased Bahadur Singh and
thereafter with the intention to kill Pyare Lal, moved together with the other
accused to the site where Pyare Lal was murdered. Dharnidhar had joined Ram
Sanehi, Baladin, Ramadin and Shiv Dayal. Thus, there were 5 34 persons who
constituted a common unlawful assembly and were carrying weapons with an
intention to commit an offence. They had knowledge and intention in mind that
they are going to kill Pyare Lal, as is evident from the evidence on record.
The learned counsel appearing for the appellants contended that there was
neither any common object nor any intention on the part of the accused to kill
Pyare Lal and for that matter, even Bahadur Singh. They have been falsely
implicated in the case by the prosecution. As far as the plea of false
implication is concerned we have already rejected it and as far as their
involvement in the commission of crime in terms of Section 34 IPC is concerned,
it is obvious that a criminal act has been committed by them in furtherance of
a common intention, and each of them was liable to be prosecuted for the same,
once they had murdered Bahadur Singh. PW1, who was an eye witness to the said
murder, in his examination-in-chief stated as under:

"These
persons are present in the court now. Shiv Dayal has been thrown the bhala to
my brother namely Bahadur which was hit to his left shoulder sides chest
portion.

35 Then
Ramsanehi, Balaprasad and Ramadin had fired with their own riffles
respectively. My brother Bahadur fallen on the ground we persons who were
present there has not said any word on account of fear. Then Ram Sanehi said
that we have killed him Now his father Pyarelal is to be killed. Saying such
words these persons have been gone the court yard. After their departure I have
seen my brother Bahadur.

He was
dead. My brother Bahadur was lay down in the court yard which was in front door
of the Jawahar Badhai. I Devi and Lally have been followed to Ram Sanehi and
others and reached to the court yard of the field where my father was busy in
storing the jwar. My brother Manohar and mother Mula bai were present there. I
have seen that these four accused were present there.

In the
meanwhile Dharnidhar came from somewhere/or from some place Dharnidhar has
snatched the Kulhadi (an axe) from the hands of my father. Ram Sanehi, Baladin
alias Balla & Ramadin had fired on my father from their own riffles. My
father lay down on the ground. Dharnidhar was cutting the neck of my father. We
have started shouting. After hearing the shouting so many persons rushed out
here.

But they
could not reach at the spot. After seeing the crowd of people of the village
these accused persons have been run out to the jungle area. My father had been
fallen at the distance of 7 steps away from the Mahua Tree in the Ladaiya
fields. When the accused persons left that place at that time we had gone to
seen the condition of my father."

36
(emphasis supplied) Let us examine the judgments of this Court in relation to
common intention and commission of crime by the members of an unlawful
assembly. It is a settled principle of law that to show common intention to
commit a crime it is not necessary for the prosecution to establish, as a
matter of fact, that there was a pre-meeting of the minds and planning before
the crime was committed. In the case of Surendra Chauhan vs. State of Madhya
Pradesh [AIR 2000 SC 1436], this Court held that common intention can be developed
on the spur of the moment.

Also,
under Section 34, a person must be physically present at the place of actual
commission of the crime. The essence is the simultaneous consensus of the minds
of persons participating in the criminal act and such consensus can be
developed on the spot. It is not mandatory for the prosecution to bring direct
evidence of common intention on record and this depends on the facts and
circumstances of the case. The intention could develop even during the course
of occurrence. In this regard reference can be made to Ramaswamy Ayhangar vs.
State of Tamil Nadu 37 [(1976) 3 SCC 779] and Rajesh Govind Jagesh vs. State of
Maharashtra [(1999) 8 SCC 428]. In other words, to apply Section 34, two or
more accused should be present and two factors must be established i.e. common
intention and participation of the accused in the crime. Section 34 moreover,
involves vicarious liability and therefore, if intention is proved but no overt
act is committed, the section can still be invoked.

In the
present case all the 4 accused had gone together armed with three guns and one
sphere and after shouting, making their minds clear, had fired at Bahadur Singh
causing gun injuries and sphere injury on his shoulder. The learned Trial
Court, besides recording the finding against the accused on motive and
referring to the recovery of the sphere, has also, in great detail, dealt with
the injuries caused by the accused upon the two deceased. In terms of the
medical reports proved by PW 6, (being Ext. K3 and K4), there were four gun
shots on the body of each of the deceased and in addition thereto one incised
wound near the shoulder of Bahadur Singh and two incised wounds on the neck of
Pyare Lal. The medical evidence is clear 38 that these injuries could be caused
by gun, sphere and kulhari.

The
attending circumstances fully support the case of the prosecution. PW1 and PW3,
who were present at the different places of occurrence, have frankly stated
that they were to intervene and save their brother and father but because of
the fear of the gun they could not do so. Having found the above four accused
guilty on the strength of Section 302 read with Section 34 of the IPC, the
Trial Court held all the 5 accused are guilty of Section 302 read with Section
149 of the IPC for the murder of Pyare Lal. It has been shown in the evidence
that after committing the murder of Bahadur Singh, they moved to the fields
where Pyare Lal was watching his bajra crop, after having clearly made up their
minds and with a common object to kill Pyare Lal. Once they reached the spot,
they were joined by Dharnidhar, who also participated in the commission of the
crime and in fact, played an active role by snatching the kulhari of the
deceased and causing injury on his neck. The said injury and the gun injuries
proved to be fatal, which ultimately resulted in the death of Pyare Lal on the
spot itself. In fact, it is 39 not even expected of the prosecution to assign
particular or independent roles played by each accused once they are members of
unlawful assembly and have assaulted the deceased persons, which resulted in
their death. Every person of such an unlawful assembly, can be held to be
liable. In the case of Sheo Prasad Bhore v. State of Assam [(2007) 3 SCC 120],
this court took a similar view.

In the
case of Md. Ankoos vs. Public Prosecutor, High Court of A.P. [AIR 2010 SC 566],
this Court held as under:

"28.
..........................Section 149 IPC creates constructive liability i.e. a
person who is a member of the unlawful assembly is made guilty of the offence
committed by another member of the same assembly in the circumstances mentioned
in the Section, although he may have had no intention to commit that offence
and had done no overt act except his presence in the assembly and sharing the
common object of that assembly.

The legal
position is also fairly well settled that because of a mere defect in language
or in the narration or in form of the charge, the conviction would not be
rendered bad if accused has not been affected thereby......."

40 In the
case of Pandurang Chandrakant Mhatre v. State of Maharashtra [(2009) 10 SCC
773], this Court enunciated the principle that under Section 149, two
ingredients are required to be satisfied. Firstly, there has to be the
commission of an offence by any member of an unlawful assembly. Secondly, such
offence must have been committed in prosecution of the common object of that
assembly or must be such that the members of that assembly knew it to be likely
that the offence would be committed. The Court held as under:

"17...What
has to be proved against a person who is alleged to be a member of an unlawful
assembly is that he was one of the persons constituting the assembly and he 41
entertained along with the other members of the assembly the common object as
defined by Section 141 IPC. Section 142 provides that whoever, being aware of
facts which render any assembly an unlawful assembly, intentionally joins that
assembly, or continues in it, is said to be a member of an unlawful assembly.
In other words, an assembly of five or more persons actuated by, and
entertaining one or more of the common object specified by the five clauses of
Section 141, is an unlawful assembly. The crucial question to determine in such
a case is whether the assembly consisted of five or more persons and whether
the said persons entertained one or more of the common objects as specified by
Section 141. While determining this question, it becomes relevant to consider
whether the assembly consisted of some persons who were merely passive
witnesses and had joined the assembly as a matter of idle curiosity without
intending to entertain the common object of the assembly."

xxx xxx
xxx xxx

71.
Having carefully examined the testimony of eye-witnesses, we find that
prosecution has been able to establish that party of assailants comprised of
more than five persons and that they formed unlawful assembly. It is also seen
from the evidence that at least five persons chased the deceased and then
attacked him. These members of the unlawful assembly who chased and attacked
the deceased definitely 42 shared common object of causing murder of Suresh
Atmaram Gharat. A-1 had died during pendency of the appeal before the High
Court and, therefore, nothing further needs to be said about his role."

The
principles controlling the application of provisions of Section 149 have been
quite well settled by now. Years back, the bench of this court in Masalti v.
State of U.P. [1964 (8) SCR 133] declared the dictum of law that the
prosecution has to prove against a person, who is alleged to be a member of an
unlawful assembly, that the person constitutes the assembly and has entertained
along with the other members of the assembly, the common object, as defined by
Section 141 of the IPC. The crucial question to be determined in such a case is
whether the assembly consisted of five or more persons and whether the said
persons entertained one or more of the common objects. For determination of the
common object of the unlawful assembly, the conduct of each of the members of
the said assembly before the attack, at the time of attack and thereafter, as
well as the motive for the crime are some of the relevant considerations.

However,
the time of forming an unlawful intent is not material 43 because it is
possible that in a given case an assembly, which is lawful to begin with,
subsequently becomes unlawful. In other words, unlawful intent can develop
during the course of the incident at the spot co instanti. [Maranadu v. State
by inspector of Police, Tamil Nadu (2008) 16 SCC 529].

If we see
the facts of the present case, it is obvious that the four accused were
together and had openly declared their intention to kill Pyare Lal. They were
then joined by Dharnidhar, in furtherance of this common object, to commit an
offence In this manner an unlawful assembly was formed.

Dharnidhar
assaulted Pyare Lal with a kulhari. Thus, every one of them participated in the
commission of the crime, besides the fact that they had a common object to kill
Pyare Lal. In these circumstances, we are unable to find any legal or other
infirmity in the judgment of the Trial Court, as well as that of the High Court
in holding that the four accused, in the case of murder of Bahadur Singh, were
guilty of the offence under Section 302 read with Section 34. Furthermore, in
the case of the deceased Pyare Lal, all five of the accused were guilty of the
offence under 44 Section 302 read with Section 149 IPC. Besides this fact,
accused Ram Sanehi, Ramadin, Baladin and Shiv Dayal accused had also committed
an offence under Section 148 of the IPC while accused Dharnidhar had committed
an offence under Section 147 of the IPC.

In view
of the above elaborate reasoning, we do not find any merit in the contentions
raised on behalf of the appellants in all the appeals. The same are therefore
rejected. Thus, we are unable to persuade ourselves to interfere in the
judgment of the conviction or even in the order of sentence for that matter.